The European Commission is proposing new rules to make collecting electronic evidence such as social media posts, emails and documents easier and quicker. The new rules are designed to help authorities trace leads online and across borders whilst also protecting the rights of the data subjects.
In short, the proposals will:
1. Create a European Production Order. This means any judicial authority, in any Member State in the EU, will be able to ask service providers directly for any data that could help them investigate a case. This includes emails, text messages, app messages, videos etc. Judicial authorities will be able to request data from service providers that operate in any EU Member State regardless of the location of the data itself. Service providers will then be obliged to respond within 10 days, in most cases, or 6 hours in emergency cases.
2. Prevent data from being deleted using a European Preservation Order. This order gives judicial authorities in any EU Member state the power to oblige service providers to preserve data. This will mean that data, that may otherwise have been lost, can be preserved and then requested later using mutual legal assistance, a European Production Order or a European Investigation Order.
3. Create safeguards and remedies. Both a European Production Order and a European Preservation Order can only be used in criminal proceedings and all usual criminal procedural rules will still apply. The new rules will help to create a strong protection of fundamental rights, for example, due to the way certain categories of data are obtained. If the request for data violates one of the data subject’s rights under the Charter of Fundamental Rights of the European Union, then the service provider can request a review.
4. Require designated legal representatives in the EU. Under the new rules all EU service providers will be obliged to designate a legal representative. This includes service providers who operate in the EU but are located in a non- EU country. The legal representatives will receive, comply with and enforce EU decisions and orders issued by the competent legal authorities of the EU member states for the purposes of gathering evidence in criminal proceedings.
5. Provide legal certainty. The new rules are intended to provided much-needed legal certainty to service providers and businesses. After the new rules come into force, the service providers will be obliged to hand over data rather that requested to do so voluntarily.
Below you will find links to useful documents from the European Commission relating to the new rules that facilitate access to electronic evidence:
Press Release
Q&A
Draft Regulation
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